A Case Study in Patent Litigation Transparency

30 Pages Posted: 3 Oct 2013 Last revised: 21 Nov 2014

Bernard Chao

University of Denver Sturm College of Law

Derigan Silver

University of Denver Department of Media, Film and Journalism Studies; University of Denver Sturm College of Law

Date Written: October 1, 2013

Abstract

The courts have long recognized a general right to inspect and copy judicial documents. Yet, large swaths of filings in patent litigations are often inaccessible. This article takes a closer look at this phenomenon by examining a single case. The Monsanto v. DuPont dispute over genetically modified Roundup resistant crops was chosen because of the impact it has on both agribusiness and patent law. The $1 billion award against DuPont will undoubtedly shape the future of the market for genetically modified crops. Moreover, because the award was issued before a single infringing seed was sold, the case raises novel patent remedy issues.

This article assesses how transparent this landmark case was from two perspectives. Initially, it measures the nature and quantity of documents filed under seal. Next, this article selectively drills down on three different phases of the litigation, the pleadings, summary judgment and trial, to provide a more nuanced understanding of what the public cannot see. The results show a case that was fought largely in secret except for trial which was mostly open. Approximately 34% of the 1,697 of the filings listed in the PACER docket were filed under seal. This includes many of the key filings and court decisions. Moreover, the large majority of these secrets filings were made without any judicial oversight. It may be that the court simply did not have the resources to review all the applications to seal in this massive case. But regardless of the cause, this case highlights a recurring problem in patent litigation; the rampant sealing of documents of significant importance to the public.

Keywords: patent, transparency, First Amendment, open courts

JEL Classification: K41, O31, O34, O38

Suggested Citation

Chao, Bernard and Silver, Derigan, A Case Study in Patent Litigation Transparency (October 1, 2013). 2014 Journal of Dispute Resolution 83 ; U Denver Legal Studies Research Paper No. 13-47. Available at SSRN: https://ssrn.com/abstract=2334417 or http://dx.doi.org/10.2139/ssrn.2334417

Bernard H. Chao (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Derigan Silver

University of Denver Department of Media, Film and Journalism Studies ( email )

2490 S. Gaylord St.
Denver, CO 80208-5000
United States

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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